Tories Raise The Spectre Of A Same-Sex Marriage Ban

June 13th, 2011

En nomine Harperus, matrimonium gayus invitamus resurgere a moruis! Lorem ipsum!!

Well, that didn’t take very long, did it?

Just weeks after Canada’s federal election, delegates at the Conservative Party Convention have raised a dead social issue over the weekend, discussing and voting on a resolution to ban same-sex marriage in Canada.

While a same-sex marriage ban had already been official Conservative Party policy, delegates readily voted to re-affirm it, adding in new measures that would let religious organisations deny facilities and services to same-sex couples. The resolution also included a wording change to clarify that this is Conservative Party policy, and not necessarily official government policy. The latter change was likely the government’s attempt to distance itself from contentious social issues early in their mandate, although it’s now perfectly clear what the party’s goals are overall.

So, what does all this mean for the GLBT community in Canada? First, that Canada’s governing party is not here for you. This is hardly a surprise, considering the party’s history of hostility toward GLBT citizens, but with Stephen Harper’s attempts to paint the Conservatives as Canada’s new, natural governing party, a lot of people have forgotten the party’s social conservative roots.

More worryingly, though, the overwhelming support of this resolution from within the party suggests that a backbencher’s bill to ban same-sex marriage, if introduced, would easily find the numbers required to pass, even if the government would rather keep it off the agenda.

Now, with nine consecutive provincial court rulings affirming that equal marriage is a right guaranteed by Canada’s Charter of Rights and Freedoms, a bill to rescind these rights would face some—shall we say—difficulties. So, let’s put on our cowboy boots for a moment and imagine what, exactly, would be required here.

First, it’s important to note that the Supreme Court of Canada has never ruled on the constitutionality of a same-sex marriage ban. The government is in a position to appoint judges that could dissent from the individual provincial courts’ longstanding consensus, and could conceivably do just that. Perhaps weirder, even if the Supreme Court sided with the nine earlier court rulings in favour of equal marriage rights, an obscure constitutional clause could be used by the government to strip them away anyway in five-year intervals without legal recourse.

This isn’t unheard of. In late 2000, Alberta’s Progressive Conservative government, under the leadership of Ralph Klein, invoked Section 33 of the Charter—the Notwithstanding Clause—to ban same-sex marriage in the province. By using this clause, the government effectively acknowledged that their law violated the Charter of Rights, but allowed it to remain on the books completely immune from court challenges for a period of five years (at which point they would have had the option pass it again). The only reason the government didn’t invoke the clause a second time in 2005 was because marriage is federal jurisdiction and by that time Paul Martin’s Liberal government had already granted equal marriage rights to citizens nationwide.

Today, Canada’s federal government is formed by a party in support of banning same-sex marriage, and the Notwithstanding clause is available at their discretion. So, despite challenges, they could absolutely take away your right to marry if they wanted.

Now, are any of these doomsday scenarios likely? I’m going to say no. If I had to bet on it, I’d say the government’s desire to stay in power outweighs the cries from their base to force the wedding ring off my finger. Use of the Notwithstanding clause would likely appear mean-spirited and unpopular to the Canadian public, and it would be unusual for the Supreme Court of Canada to overturn nine consecutive lower court rulings—certainly a phenomenon for the history books.

Nonetheless, the fact that there is landslide majority support within Canada’s governing party to venture down this path re-confirms what I’ve always suspected: The Conservative Party is full of giant douches. So hold on to your hats, kids! Even if all this party policy nonsense turns out to be the idle threats that I suspect they are, I still foresee four years of obnoxious barium saline suspension waves coming our way. Yuck.